BETWEEN
Respondent
and
Christopher Husbands
Appellant
On appeal from the conviction entered on December 17, 2014, and the sentence
imposed on April 16, 2015, by Justice Eugene Ewaschuk of the Superior Court of
Justice, sitting with a jury.
Watt J.A.:
[1] One day in early June, about five years ago, Christopher Husbands went
to the Food Court at the Eaton Centre. There, he shot seven people. Two died.
[2] At his trial, Christopher Husbands challenged each prospective juror for
particular way. He asked the trial judge to exercise his inherent jurisdiction to
exclude all prospective jurors from the courtroom during the selection procedure,
except for the individual prospective juror whose impartiality was being tested,
[4] The trial judge rejected the submission that he had inherent jurisdiction to
grant the order sought. Instead, he treated the request as an application under s.
640(2.1) of the Criminal Code and acceded to the defence request under that
each individual challenge was being heard and decided. But, contrary to
Husbands wish, the trial judge directed that the same two triers would determine
the truth of every challenge for cause. And that is what happened at trial.
[5] The jury found Christopher Husbands guilty of two counts of second
of appeal.1 He says that the jury selection procedure followed by the trial judge
deprived the court of jurisdiction to try him. The court, he claims, was never
[7] The reasons that follow explain why I agree that the manner in which the
trial judge directed that the truth of the challenges for cause be tried was fatally
flawed. And so it is that I would allow the appeal, set aside the convictions and
order a new trial on each offence of which Christopher Husbands was convicted.
examination of what occurred once the parties had settled the basis upon which
[9] The trial judge asked defence counsel (who was also counsel on appeal)
whether he wanted the jury panel excluded during the jury selection process. The
1
The hearing of the appeal was bifurcated as a result of directions given by the appeal management
judge. The panel decided to follow the procedure proposed by the appeal management judge in light of
the potential impact of the error alleged on the verdicts rendered at trial.
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judge said nothing about exclusion of sworn jurors and did not distinguish
[10] Defence counsel made it clear that he was not bringing an application
under s. 640(2.1) of the Criminal Code. The trial judge responded immediately.
jury panel would remain in the courtroom during jury selection, and the trial of the
[11] Defence counsel then expressly asked the trial judge, a request he would
rotating triers.
[12] On one occasion, defence counsel pointed out that the procedure he
submissions, the trial judge never asked the trial Crown (not Mr. Alvaro) for any
submissions on the issue. The trial Crown said nothing during the entire
discussion about how the challenge for cause would be carried out.
[14] The trial judge concluded that the enactment of s. 640(2.1) of the Criminal
Code had displaced the common law discretion of trial judges to exclude
prospective jurors from the courtroom when the truth of the challenges for cause
[15] Defence counsel persisted. He reiterated his request for rotating triers,
explaining that the Criminal Code did not provide any procedure to ensure that
static triers were themselves impartial before their selection as triers of the
[16] After defence counsel had concluded his submissions, the trial judge
ruled:
appeal. As I would paraphrase it, he says that the trial judge erred in requiring
the truth of the challenge for cause to be decided by static triers in the absence
of an application for the exclusion of sworn and unsworn jurors under s. 640(2.1)
described to settle the environment in which this issue arises for decision in this
case.
[19] The appellant begins with a reference to s. 640 as the statutory provision
that governs the determination of the method used to decide the truth of each
challenge for cause. Section 640(2) creates a general or default rule that requires
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rotating triers as the adjudicative body. But the general rule has an exception,
which when properly engaged, permits another method to determine the truth of
[20] The single exception to the rotating triers procedure arises from the
combined operation of ss. 640(2.1) and (2.2). But this alternative adjudicative
forum is not for the asking. And it is not for both parties. What is required is an
application by the accused and a determination by the presiding judge that the
impartiality of the jurors. Provided these requirements have been met, the
presiding judge has a discretion to order that every challenge for cause be
decided by the same two triers, so long as the selection process continues.
[21] The appellant emphasizes that absent an application by the accused, the
truth of the challenge for cause cannot be decided by static triers. A trial judge
[22] The appellant says that the amendments to ss. 640(2.1) and (2.2) do not
remove a trial judges inherent jurisdiction to exclude unsworn, but not sworn,
jurors from the courtroom, with rotating triers deciding the truth of each challenge
for cause. Nor do the amendments confer on a trial judge any inherent authority
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[23] In this case, the appellant contends, the trial judge made four discrete but
related errors. He erred in holding that the amendments removed his well-
could unilaterally order static triers because a request to exclude unsworn jurors
triggered the operation of ss. 640(2.1) and (2.2). He wrongly determined that ss.
640(2.1) and (2.2) permitted the use of rotating triers and further erred when he
determined that the common law permitted him to choose static triers over
rotating triers.
[24] In conclusion, according to the appellant, the trial judges direction that
the challenge for cause be tried by static triers deprived the court of jurisdiction to
try him. Such an error exceeds the grasp of the provisos in s. 686(1)(b) of the
application to exclude all jurors, sworn and unsworn, during the challenge for
cause procedure. Defence counsel never once limited his request for exclusion
to unsworn jurors. Nevertheless, the trial judge believed that he had inherent
jurisdiction to order rotating triers where he had excluded all the jurors. But he
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properly ordered static triers in the circumstances. In the end, the respondent
says, any error that may have occurred caused no prejudice to the appellant and
[26] The respondent says that the scope of exclusion sought by defence
counsel determines whether the adjudicative body will be static or rotating triers.
Provided an accused does not seek exclusion of all jurors sworn and unsworn
rotating jurors may decide the truth of the challenge. That said, where the
right to rotating triers. The order is discretionary, not mandatory. But where
exclusion of all, both sworn and unsworn, is what an accused seeks, such a
request is governed by ss. 640(2.1) and (2.2), thus rotating triers are not
available.
application by the appellant, developed in two stages, to exclude all jurors, sworn
and unsworn, but to have the truth of the challenge tried by rotating triers.
exclusion to the exclusion of unsworn jurors or, put another way, never said he
did not want sworn jurors excluded. In the end, the respondent says, counsel
result, this meant all jurors would be excluded and the truth of the challenge for
[28] The respondent advances two alternative arguments. The first is that
despite his direction that static triers would determine the truth of each individual
challenge, thus that all jurors sworn and unsworn would be excluded during
the challenges for cause, the trial judge left open the use of rotating triers. But
defence counsel failed to advance any argument that would engage the
discretion. And the second is that any error or irregularity that occurred can be
miscarriage of justice.
[29] The principles that inform our decision in this case have their origins in
both the common law and the Criminal Code. First, the common law principles
manage the trial process, including the selection of jurors. Next, the statutory
provisions in particular s. 640 of the Criminal Code that prescribe the manner
rendered at trial despite errors and irregularities in the conduct of the trial.
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[30] At common law, a trial judge has the authority to supervise and control
limits of the authority are not precisely defined, but the authority to manage the
the authority to control the jury selection process to make effective use of court
(2001), 160 C.C.C. (3d) 493 (Ont. C.A.), at para. 85; R. v. Noureddine, 2015
ONCA 770, 332 C.C.C. (3d) 114, at para. 38; R. v. Grant, 2016 ONCA 639, 342
C.C.C. (3d) 514, at para. 11; R. v. Murray, 2017 ONCA 393, at para. 47. This
authority to control the jury selection process includes the discretion to exclude
prospective (unsworn) jurors from the courtroom during the challenge for cause
process to ensure the impartiality of the jurors selected to try the case: Grant, at
para. 11; Murray, at para. 53; R. v. Swite, 2011 BCCA 54, 268 C.C.C. (3d) 184,
at para. 28.
[32] Section 8(2) of the Criminal Code ensures that this discretion remains
intact, despite the enactment of the Criminal Code, at least to the extent that it is
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not altered, varied, modified or affected by the Criminal Code or other federal
authority for any order that contravenes a specific Criminal Code requirement:
Noureddine, at para. 38; Murray, at para. 47; Swite, at para. 28; R. v. V. (W.),
2007 ONCA 546, at para. 22, leave to appeal refused, 386 N.R. 391 (note).
[33] Since the enactment of our first Criminal Code in 1892, rotating triers
have determined the truth of challenges for cause advanced on the basis that
prospective jurors are not indifferent between the parties: Criminal Code, 1892,
55-56 Vic., c. 29, s. 668; Noureddine, at para. 35. Rotating triers remained the
until the current s. 640 was amended by the addition of subsections (2.1) and
[34] Sections 640(2.1) and (2.2) added another method of trying the truth of
challenges for cause based on lack of indifference. But this new method has
courtroom all jurors, both sworn and unsworn, until the truth of
exclusion does not issue as of right. The controlling language is the permissive
may, not the compulsory shall: Noureddine, at para. 35; Grant, at para. 12;
[35] The enactment of ss. 640(2.1) and (2.2) did not oust or circumscribe the
common law discretion of a trial judge to exclude unsworn jurors from the trial of
the truth of the challenge for cause in respect of individual prospective jurors by
rotating triers. Put somewhat differently, the amendment explicitly provided trial
cause process and ensure a fair trial. What the amendments did not do, neither
discretion to exclude unsworn jurors during the trial of the truth of challenges for
cause by rotating triers: Grant, at paras. 18, 37, 41; Murray, at para. 53.
[36] The enactment of ss. 640(2.1) and (2.2) did not alter the character of the
pre-existing authority to exclude unsworn jurors during the trial of the truth of
individual challenges for cause by rotating triers. An order for exclusion based on
the exercise of the trial judges inherent jurisdiction does not issue as of right.
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presiding judge, a decision that will depend on the circumstances of each case:
[37] The amendments in ss. 640(2.1) and (2.2) do not authorize a trial judge
simply to choose one method of trial of the truth of the challenges for cause
rather than the other. Static triers may only be ordered upon the satisfaction of
choose or direct static triers. Default requires rotating triers: Swite, at paras. 28-
operation of ss. 640(2.1) and (2.2). In assessing whether such an application has
been brought, substance trumps form. The fact that the defence has not made a
dichotomy between static triers with the panel excluded and rotating triers with
the panel included, has been held to amount to the functional equivalent of an
[39] Similarly, a desire to exclude prospective jurors during the challenge for
cause process and satisfaction with properly-vetted static jurors has been found
2017 ONCA 68, at para. 12; R. v. Kossyrine, 2017 ONCA 388, at paras. 19-21,
28.
procedural errors that lead to a loss of jurisdiction over the accused have
occurred at trial, provided the Crown can demonstrate that the trial court had
jurisdiction over the class of offence of which an appellant was convicted and that
the error did not prejudice the appellant. Prejudice takes into account not only the
impact of the error or irregularity on the verdict rendered at trial, but also its
impact on the actual and apparent fairness of the trial process: Noureddine, at
[41] It has been held that where a jury has been selected by a challenge for
cannot preserve the verdict rendered at trial: Noureddine, at paras. 57, 68; Swite,
at para. 54; V. (W.), at para. 26. This is so because the court in particular the
jury has not been properly constituted. And this is so because the process used
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to determine the truth of the challenge for cause directly contravenes the
[42] For several reasons, I would give effect to this ground of appeal, set aside
the convictions entered at trial and order a new trial on each count of which the
[43] First, as we have already seen, the general or default rule about the trial
of the truth of the challenges for cause based on lack of indifference on the part
prospective (unsworn) jurors from the courtroom while individual challenges are
so. This authority remains despite the enactment of ss. 640(2.1) and (2.2). The
[44] Second, trial of the truth of the challenge for cause by static triers, the
method directed by the trial judge in this case, is only available where the
accused applies to exclude all jurors, both sworn and unsworn, from the
courtroom while individual challenges for cause proceed, and where the
[45] In this case, defence counsel repeatedly told the trial judge that he was
ineluctably from the absence of any application, that the provisions of ss.
640(2.1) and (2.2), which alone permit the use of static triers, never became
640(2.1) that no order could be made under that subsection. The absence of an
order under s. 640(2.1) engages s. 640(2) which required the trial of the
[46] Third, this is not a case in which it can be said, as the Crown argues, that
[47] The language used by defence counsel simply does not bear the
term that refers to prospective or unsworn jurors. Sworn jurors cannot fairly be
selected and sworn or affirmed as jurors to try the case. Further, defence counsel
made it abundantly clear that he grounded his claim for the exclusion of the jury
panel during the trial of the truth of the individual challenges on the inherent
[48] Fourth, the direction that static triers determine the truth of the challenges
for cause contravenes the specific provisions of ss. 640(2.1) and (2.2) of the
[49] Finally, in accordance with the current state of the law concerning the
salvaged.
[50] The trial judges order denied the appellant the benefits of having the truth
of the challenges for cause determined by rotating triers. What is more, this
among other things, an application by the accused before static triers could be
ordered. This was an application that defence counsel repeatedly said was not
being advanced. Expressly and repeatedly, counsel wanted rotating triers. Yet
the trial judge forged ahead, despite the entreaties of defence counsel, without
any inquiries of the trial Crown about her position and seemingly oblivious to the
CONCLUSION
[51] For these reasons, I would allow the appeal, set aside the convictions and
order a new trial on each offence of which the appellant was convicted. Since
there was no appeal of the acquittals of first degree murder, the new trial should
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